The trav­esty of teacher ten­ure

Cecil Whig - - OPINION - Ge­orge Will

— The mills of jus­tice grind slowly, but life plunges on, leav­ing lives blighted when jus­tice, by be­ing de­layed, is ir­re­me­di­a­bly de­nied. For­tu­nately, Cal­i­for­nia’s Supreme Court might soon de­cide to hear — four years af­ter lit­i­ga­tion be­gan — the 21st cen­tury’s most por­ten­tous civil rights case, which con­cerns an on­go­ing de­nial of equal pro­tec­tion of the law.

Ev­ery year, mea­sur­able in­juries are in­flicted on tens of thou­sands of al­ready at-risk chil­dren by this state’s teacher ten­ure sys­tem, which is so po­lit­i­cally en­trenched that only the courts can pro­tect the dis­crete and in­su­lar mi­nor­ity it vic­tim­izes. In 2012, nine Los An­ge­les stu­dents rec­og­niz­ing the fu­til­ity of ex­pect­ing


the Leg­is­la­ture to rec­tify a wrong it has per­pe­trated asked Cal­i­for­nia’s ju­di­ciary to con­tinue its record of vin­di­cat­ing the rights of vul­ner­a­ble mi­nori­ties by re­quir­ing the state’s ed­u­ca­tion sys­tem to con­form to the state’s Con­sti­tu­tion.

Af­ter 10 weeks of tes­ti­mony, the trial court found the ten­ure sys­tem in­com­pat­i­ble with the Cal­i­for­nia Supreme Court’s de­ci­sion, now al­most half a cen­tury old, that the state Con­sti­tu­tion, which de­clares ed­u­ca­tion a “fun­da­men­tal” state con­cern, guar­an­tees “equal­ity of treat­ment” to all K-12 pupils. It “shocks the con­science,” the trial court said, that there is “no dis­pute” that “a sig­nif­i­cant num­ber of grossly in­ef­fec­tive teach­ers” — per­haps more than 8,000, each with 28 stu­dents — are do­ing quan­tifi­able dam­age to chil­dren’s life prospects.

Tech­ni­cally, Cal­i­for­nia teach­ers are granted life­time ten­ure af­ter just two years. Ac­tu­ally, they must be no­ti­fied of tenured sta­tus af­ter just 16 months. (Thirty-two states grant ten­ure af­ter three years, nine states af­ter four or five. Four states never grant ten­ure.) When in­com­pe­tent or neg­li­gent teach­ers gain ten­ure, dis­missal pro­ce­dures are so com­plex and costly that the process can take up to 10 years and cost up to $450,000. The trial court called the power to dis­miss “il­lu­sory.” Each year ap­prox­i­mately two teach­ers are dis­missed for un­sat­is­fac­tory per­for­mance — 0.0007 per­cent of Cal­i­for­nia’s 277,000 teach­ers.

In­stead, school dis­tricts are forced to adopt what is called the “dance of the lemons,” whereby grossly in­ef­fec­tive teach­ers are shuf­fled from school to school. An­other facet of the ten­ure sys­tem — the teach­ers last hired are the first fired when lay­offs are re­quired — re­in­forces the pow­er­ful ten­dency for in­com­pe­tent teach­ers, who must teach some­where, to ac­cu­mu­late in schools with the most teacher va­can­cies. These are dis­pro­por­tion­ately schools at­tended by low­in­come mi­nor­ity chil­dren.

Abun­dant re­search demon­strates that teacher qual­ity is the most im­por­tant school vari­able deter­min­ing aca­demic per­for­mance. This is why there is more vari­a­tion in stu­dent achieve­ment within than between schools. This vari­a­tion is es­pe­cially dra­matic among stu­dents from ed­u­ca­tion­ally dis­ad­van­taged fam­i­lies. A sin­gle grossly in­ef­fec­tive teacher can de­prive stu­dents of a full year of learn­ing, with con­se­quences that in­clude lower grad­u­a­tion and col­lege at­ten­dance rates, and life­time earn­ings more than $250,000 lower than for pupils with­out a sin­gle in­com­pe­tent teacher. Be­cause teach­ers’ unions in­sist that fi­nan­cial ap­pro­pri­a­tions are the al­limpor­tant de­ter­mi­nants of schools’ suc­cesses, they are per­versely re­luc­tant to ac­knowl­edge the im­por­tance of qual­ity teach­ers.

The ap­peals court re­sponded with a ju­di­cial shrug to the trial court’s fac­tual find­ings. It said Cal­i­for­nia’s ten­ure sys­tem does not con­sti­tute a de­nial of equal pro­tec­tion be­cause the iden­ti­fi­able class of peo­ple be­ing in­jured have no “shared trait.” Oh? What about their shared in­jury? The in­jured pupils share a sus­cep­ti­bil­ity to in­jury be­cause of their shared trait of be­ing eco­nom­i­cally dis­ad­van­taged. This trait con­cen­trated them in schools that them­selves have a shared trait — dis­pro­por­tion­ately high num­bers of bad teach­ers.

The ap­peals court breezily said the in­jured were merely an “un­lucky sub­set” of pupils, a “ran­dom as­sort­ment” pro­duced not by the ten­ure laws but by the ad­min­is­tra­tion of them. This, how­ever, is a dis­tinc­tion with­out a dif­fer­ence: The ten­ure laws’ pur­pose is to dic­tate out­comes by de­priv­ing ad­min­is­tra­tors of dis­cre­tion. Sys­temic re­sults can­not be dis­missed as “ran­dom.” Even if the ten­ure laws were nei­ther writ­ten with a dis­crim­i­na­tory mo­tive nor ad­min­is­tered with a dis­crim­i­na­tory in­tent, the sys­tem is now known to pro­duce — not in­vari­ably but with a high prob­a­bil­ity — pre­dictable pat­terns of dis­par­i­ties.

Lib­eral and con­ser­va­tive le­gal lu­mi­nar­ies, from Har­vard’s Lau­rence Tribe to Stan­ford’s Michael McCon­nell, have urged Cal­i­for­nia’s Supreme Court to do what the ap­peals court ne­glected to do — ap­ply height­ened scru­tiny to the ten­ure laws that pri­or­i­tize teach­ers’ job se­cu­rity over pupils’ con­sti­tu­tional right re­gard­ing ed­u­ca­tion. Cal­i­for­nia’s Supreme Court will have na­tional res­o­nance if it af­firms that public schools are es­tab­lished to en­able chil­dren to flour­ish, not to make even dread­ful teach­ers se­cure.

Ge­orge Will is a syn­di­cated colum­nist. Con­tact him at georgewill@wash­

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